February 7, 2008


He gets life, she gets off (RICK CASEY, 2/05/08, Houston Chronicle)

Maybe a Lufkin jury believed teenager Erica Basoria when she told them she had asked her boyfriend to stand on her abdomen to abort the twins she was carrying in May 2004.

Maybe the jury didn't believe her. Maybe they believed the prosecutor's assertion that she wanted the babies and was covering for her boyfriend.

Under a Texas law passed the year before and now before the Court of Criminal Appeals, it doesn't matter.

Either way, Jerry Flores, who was an 18-year-old high school senior at the time (she was a sophomore), is serving a life sentence for capital murder.

It could have been worse. Prosecutors did not seek the death penalty, so conviction automatically meant a life sentence.

It's not exactly the sort of case lawmakers had in mind when they passed a law in 2003 that makes it murder to kill an unborn child "from fertilization until birth."

In recognition of a woman's right to abortion, the law exempts the mother and licensed health care providers acting with the consent of the mother. She could not have been charged even if prosecutors thought she did ask Jerry to stand on her.

During discussion of the bill then-Sen. Ken Armbrister noted that Texas law "does not protect the unborn child from a third party who harms or kills the child against the wishes of the mother."

Speaking of the Flores case, a co-author of the law, Rep. Ray Allen, R-Grand Prairie, told the Associated Press: "We didn't consider a case as ridiculous as this."

One would assume the column that follows would decry the mother escaping justice, no?

Posted by Orrin Judd at February 7, 2008 6:50 PM

The relevant statutory provision is http://caselaw.lp.findlaw.com/txcodes/pe.005.00.000019.00.html

The DA wimped out. The section provided that the death of an unborn child is not murder when the act is committed b the mother of the unborn child, which here it was not. The act here was must definitely not comitted by the mother of the unborn child, but by the child's father, so it was murder.

Assume that the facts are that Mommy dearest did not commit the act, so the act was still murder under Texas law. Mommy dearest, however solicited the act of murder.

What was both ridiculous and evil, was that the D.A. didn't know enough substantive criminal law to see that the section priviliging a mother to slaughter her child does not privilige her to solicit another to do so.

Posted by: Lou Gots at February 7, 2008 8:26 PM